The Indiana Court of Appeals decided an interlocutory appeal in the case of TDM v. Wilhoite Family Farms (pdf). It caught my eye because of my deep and lasting affection for porcine litigation.
It involved a case out of Tippecanoe County where TDM has been intentionally exposing gilts to PRRS before shipping them back to North Carolina for use at their main breeding facilities. (Crash course in pig terminology – a gilt is a young female pig; PRRS. is “Porcine Reproductive and Respiratory Syndrome virus. It can apparently be transmitted via the air and it’s bad news if a naive herd is exposed. I believe TDM was exposing its gilts in Tippecanoe County so they could get through the sickness and develop antibodies before they were taken to North Carolina; when bred, the sow’s antibodies would be passed along to her babies.)
A neighboring Tippecanoe County farmer has sued TDM, claiming that his pigs were infected with PRRS because of TDM’s practices — he claims nuisance, negligence and trespass. TDM moved for summary judgment, claiming that because the gilts were infected using a serum, a state lawsuit is preempted by the federal “Virus Serum Toxin Act.” It also claimed that the lawsuit was precluded by Indiana’s Right to Farm Act. I’ll confess to not reading the Virus Serum Toxin section very carefully; but the upshot was that infection by serum instead of by other means was incidental to Wilhoite’s claim and, therefore, that federal statute did not preempt the lawsuit.
The court of appeals further explained that Indiana’s “right to farm act” served to protect established farmers from nuisance suits when populated areas grew into the agricutural areas. It did not protect one agricultural user from claims of nuisance by another.
The Court of Appeals, therefore, affirmed the trial court’s denial of summary judgment, clearing the way for the matter to proceed to trial where, presumably, a jury would determine whether TDM’s acts constituted negligence, nuisance, or trespass and, if so, what the farmer’s damages were.
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